Aarushi trial games set to intensify as Nupur gets bail

Dr Nupur Talwar, one of the accused in the Aarushi-Hemraj murder trial, was granted bail by the Supreme Court on Monday. The court ordered that Nupur be released from custody latest by 25 September.

Nupur Talwar and her husband Rajesh are on trial for the May 2008 murders of their daughter Aarushi and servant Hemraj. Rajesh has been on bail on the orders of the Supreme Court. Nupur has been in Ghaziabad’s Dasna jail since 30 April.

Monday’s development goes well beyond the mere fact of an undertrial (there are hundreds of thousands in the country) getting bail. Three different courts are hearing different facets of this case. As a special court in Ghaziabad hears the trial, the challenge to Rajesh Talwar’s bail remains pending in the Allahabad High Court.

On Monday, the Supreme Court dealt with Nupur’s bail plea, which had reached the Apex court after rejections at all levels below. Events at each of these courts have the same combatants, but perhaps more importantly, they are marked by the same bitterness.

The Supreme Court’s last order on Nupur’s bail came on August 16, and extended her stay in jail by over month. The glee on the faces of ‘team prosecution’ after the order was of the kind rarely seen even among winners of crunch games at under-13 football tournaments. (I know this because I am also a ‘soccer dad’.)

On Monday, the tables had turned. The matter was heard by the same bench, Justices A.K. Patnaik and J.S. Khehar, who had in August allowed the CBI a month’s time to examine 13 witnesses the agency feared may be “tampered” with should Nupur be out on bail. As on 17 September, nine of these witnesses had been examined; two had been dropped by the CBI; and two, said additional solicitor general Sidharth Luthra, appearing for India’s premier investigating agency, “could not be traced”. The witnesses were a maid and a security guard.

The judges had heard enough. The Supreme Court effectively told the CBI: Well go and find these people before 25 September and examine them. Nupur Talwar stays in jail only till that day — whether you find them or not.

The judges had barely finished when Harish Salve, a counsel for the defence, was telling his opponent Sidharth Luthra, that Nupur should have been granted bail from right that moment, and that Luthra had no business asking for more time to examine witnesses. He ended the conversation with Luthra by beginning one with reporters: “Cry-baby CBI asks for more time”, he said. “And you can quote me!”

Monday’s order on Nupur’s bail has an impact in Allahabad. The ground of parity that the defence’s counsel K.V. Vishwanathan pleaded at the Supreme Court in August, (i.e. Rajesh is out on bail, Nupur deserves the same treatment) now gets reinforced. It would take a particularly whimsical court to overrule the Supreme Court on two counts — the Apex Court has earlier said Rajesh will “remain on bail”; on Monday it granted Nupur’s plea.

At the trial court, however, the hearings continue. As do the games. On “bad days”, like when the CBI was forced to admit that it was trying to place into record a fraudulent piece of evidence, CBI counsel R.K. Saini has been heard telling the Talwars: “I’ll see how you get acquitted.” (Saini denies saying this, although several people in court say he did. The incident happened when forensic scientist B.K. Mohapatra was exposed after testifying that Hemraj’s bloody pillow and pillow cover were discovered in Aarushi’s room. The implications of this were obvious, and possibly fatal for the defence. However, the record now shows, correctly, that the forensic scientist had collected the item from Hemraj’s room, not Aarushi’s.)

During the last hearing before Nupur’s bail plea came up, another little game in Ghaziabad. Saini had been down with viral fever, but had come to court last Friday, and was, as usual briefing reporters — a scene that nobody in the defence particularly likes to see. Rajesh Talwar walked towards the group and asked after Saini’s health. The counsel said he was better, but felt one of the drugs he was taking was causing him discomfort. He pulled a little case out of his coat pocket and showed Rajesh the contents. The dentist inspected the pills, and said: “Change the anti-biotic”.

Saini’s briefings can happen anytime, anywhere, in the court premises (but a sesame tree in the yard is generally the venue). This one was broken up. Perhaps, in the eyes of the defence, to its ever-so-slight advantage, in a battle being fought in a yet another court: the court of public perception.

Currently a visiting fellow at INSEAD, France, Avirook Sen has been a journalist and writer for over 20 years. A former resident editor of Hindustan Times (Mumbai) and editor of Mid-Day, he has written with passion and insight on subjects as varied as sport and terrorism for top publications across the world. His first book, Looking for America, was published in 2010 to enthusiastic reviews. You can write to him at avirook@gmail.com